Agency: Department of Defense, United States Transportation Command
Disposition: Protest Sustained in Part and Dismissed in Part
General Counsel P.C. Highlight: (1) Objections to RFP structure, which may allow offerors to propose unbalanced pricing, must be objected to before the time set for receipt of initial proposals. Subsequent objections about a specific offeror’s conduct proposing unbalanced pricing will not be entertained as untimely. (2) Agency evaluation of past performance must be fair, reasonable, and consistent with the solicitation. Further, the evaluation must be supported by agency record.
Summary of Facts: The March 25, 2015 solicitation called for an indefinite-delivery/indefinite-quantity (ID/IQ) fixed-price-with-economic-price-adjustment contract for a two-year base period, and five one-year options to provide freight services. There were over 470,000 potential individual freight rates, most of which had no historic data associated with them.
For this particular protest, only XPO and Crowley remained as offerors. The award was made to Crowley and XPO filed a protest.
Basis for the Protest: (1) XPO first argued Crowley engaged in unbalanced pricing in their bid, taking advantage of the over 470,000 potential routes and lack of historical data. (2) XPO next contends the agency’s evaluation of past performance for Crowley was flawed, because Crowley’s past performance was considerably smaller in magnitude than the effort sought under the solicitation at issue.
Protest Sustained in Part and Dismissed in Part: (1) Timeliness – Dismissed: The GAO dismissed XPO’s arguments regarding potential unbalanced pricing in Crowley’s bid, noting this was not timely. Because the potential for unbalanced pricing was readily apparent in the RFP, the time to object to this is before initial proposals were due. The GAO states, “XPO could have, but did not, challenge the solicitation terms underlying its protest claim. We find that XPO’s failure to timely challenge the estimates or the manner in which they were to be applied in the pricing evaluation precludes us from now considering the firm’s allegation regarding unbalanced pricing.” (2) Evaluation Criteria – Sustained: The GAO noted that generally past performance evaluations are within the discretion of the contracting agency. Typically, the GAO will not substitute its judgment for reasonably based decisions of the agency. “However, we will question an agency’s evaluation conclusions where they are unreasonable or undocumented. . . The critical question is whether the evaluation was conducted fairly, reasonably, and in accordance with the solicitation’s evaluation scheme.” The GAO reviewed the solicitation ratings, and Crowley’s past performance, as well as the record. The GAO found nothing in the contemporaneous record that established how the agency may have come to the conclusions found in the ratings. Further, the arguments advanced by the agency during the protest were inconsistent with the record of evaluation. Because the record did not support the agency’s decision, the GAO found the agency’s ratings were misplaced.